The Law Commission says that Wills need to be brought into the 21st century. In many ways, the urgency makes sense. For at least a decade now most of us have been using digital technology to help us negotiate our banking, shopping, working lives, dating, and family lives, – the list could go – but one area in which we are yet to fully embrace the digital, remains Wills, where we are still doing things in largely the same way our Victorian forbears did.
But, before we throw out the baby with the bathwater, not everything that is old is out-dated, so the question has to be, is our current Wills system fit for purpose in the year 2017 and for the foreseeable beyond? Does it do enough to protect vulnerable members of society; does it provide fairness, cost effectiveness, efficiency, reliability and accessibility?
Taking a look at the statistics, it would appear that the answer is a fairly resounding “no”. Every year four out of ten adults who die do so without having made a Will. It seems logical that giving people an alternative, less formal, less intimidating and more accessible method of making a Will would address this, particularly if, as the Law Commission suggests, the legal age for making a will is lowered from 18 to 16; it is likely that the earlier people get used to making provision for their legacies, the more of a habit it will become. Although quite how capable the average 16-year-old is of understanding their own mortality is another question.
Like everything else nowadays, to update the Will writing system, inevitably, means going digital. One important hurdle to be negotiated, however, is the question of whether making a digital Will is likely to be adequate. The law regarding Wills is so prescriptive that documents and their contents are frequently deemed unenforceable because they fail to meet the strict rules required by courts, even when the intentions of the testator are crystal clear. Unfortunately, giving people greater scope to make a digital Will online may well create more of these kinds of technical errors.
It seems that the Law Commission believes it can overcome this concern by loosening some of the legal procedures required for making a Will. However, there are legitimate worries that such an approach will end up creating new problems just as it solves old ones. This is why it is encouraging that the commission has proposed giving courts the power to recognise a digital Will in cases where the testator has made clear their intentions but failed to follow the formal rules. The workability and potential implications of such an approach are, however well-intentioned, a significant step into the unknown.
Another grey area that the Law Commission is hoping to address relates to mental capacity. As it stands, the law takes a firmly Victorian approach to determining capacity. By focusing on “delusions” and other pre-Freudian definitions it fails to account for the reality of dementia, which is not only manifest in many different ways but also often extremely changeable. This, clearly, is an area of Wills law that is outdated; if other areas of law can be informed by the more contemporary and sophisticated definitions of the Mental Capacity Act 2005, why should Wills law continue to derive its definitions from an age of workhouses and chimney sweeps? Refreshingly, the proposals seek to address this as well as providing statutory guidance for health professionals looking to determine whether a person has sufficient mental capacity to make a Will.
It is undoubtedly positive that the Law Commission is looking into the issue of Wills and perhaps the most encouraging news of all is that it is looking to consult the public on the crucial issues. For example – do we really believe that a new marriage should automatically revoke a Will made in a previous one? What barriers do the public perceive to the making of a Will? These are good questions, let’s hope that the powers-that-be listen carefully and get the future of digital Wills right.
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